[00:00:06] Speaker 04:
Good morning and may please the court.

[00:00:08] Speaker 04:
My name is Shelly Richter and I represent petitioner Randy Stone.

[00:00:12] Speaker 04:
I'd like to reserve two minutes for rebuttal and I'll watch my clock.

[00:00:16] Speaker 04:
Mr. Stone is seeking an opportunity, a chance to show that his claims meet the requirements of the second or successive standard.

[00:00:24] Speaker 04:
This court should authorize Mr. Stone to proceed because he has made a sufficient showing of possible merit to warrant a further exploration in the district court.

[00:00:33] Speaker 04:
Today, I'll address the two main prongs needed for authorization.

[00:00:38] Speaker 04:
First, the factual predicate for this IAC claim was not previously available to the pro se indigent incarcerated Mr. Stone.

[00:00:47] Speaker 04:
And second, reasonable jurors would not have convicted Mr. Stone absent his counsel's errors.

[00:00:52] Speaker 04:
Turning to my first point, Mr. Stone litigated diligently in his prior federal proceeding, but he could not have presented the vital facts of his current IAC claim because of circumstances beyond his control.

[00:01:06] Speaker 04:
A major factor was his indigence.

[00:01:08] Speaker 04:
He could not afford to hire an expert.

[00:01:11] Speaker 04:
Another factor was his incarceration.

[00:01:13] Speaker 04:
He could not secure funds to hire an expert or freely contact people.

[00:01:17] Speaker 00:
So what is your best case for the proposition that the failure of initial counsel to hire what you consider to be appropriate experts not based on new facts but constitutes

[00:01:40] Speaker 00:
satisfaction of B1, the factual predicate for the claim, could not have been discovered previously through the exercise of due diligence.

[00:01:50] Speaker 00:
It doesn't talk about could not have been presented.

[00:01:54] Speaker 00:
It says could not have been discovered.

[00:01:56] Speaker 00:
So what's your best case?

[00:01:58] Speaker 04:
The two cases are first from the 6th Circuit, recently is Ayers, A-Y-E-R-S, and that was a claim where the factual predicate could not have reasonably been discovered by the petitioner before the petitioner had counsel.

[00:02:16] Speaker 04:
And there she alleged an IAC claim.

[00:02:18] Speaker 00:
But petitioner had counsel here.

[00:02:21] Speaker 04:
Here, petitioner had counsel for trial and for direct appeal, but petitioner didn't have counsel any time between direct appeal and now.

[00:02:31] Speaker 04:
And so trial counsel's failure to get an expert at trial does not reflect any lack of diligence from Mr. Stone.

[00:02:39] Speaker 04:
that trial counsel's IAC back then is actually imputed to the state.

[00:02:45] Speaker 04:
And so Mr. Stone could not have been any more diligent at trial when he was appointed counsel who's constitutionally required to be effective, but counsel is nevertheless not effective.

[00:02:57] Speaker 04:
And so the case where it stated that ineffectiveness is imputed to the state is the United States Supreme Court decision in Murray versus Carrier.

[00:03:06] Speaker 04:
another case from this circuit that's relevant to your honor's question is the sun versus the laws there.

[00:03:15] Speaker 04:
The petitioner was alleging I see for failing to investigate jury tampering.

[00:03:22] Speaker 04:
And for a while, all that the petitioner knew was that there were serious indications of jury tampering that his trial counsel didn't look into.

[00:03:30] Speaker 04:
But Mr. Hassan did not know the extent of the prejudice until later.

[00:03:34] Speaker 00:
And so this court... But here, there were no new facts, right?

[00:03:38] Speaker 00:
The facts didn't change between the trial and when the two experts were retained, right?

[00:03:45] Speaker 04:
The facts underlying the reports did not change, but Mr. Stone's ability to obtain an expert did change.

[00:03:53] Speaker 04:
Mr. Stone's ability to have an expert look at those facts and provide an opinion did change.

[00:03:59] Speaker 00:
And he had that ability when the case originally went to trial, but counsel didn't get the experts, right?

[00:04:07] Speaker 00:
So the ability was there.

[00:04:09] Speaker 00:
It was counsel didn't get the experts.

[00:04:11] Speaker 04:
Yes, at trial, it was the fault of trial counsel who did not perform in the constitutionally required way.

[00:04:19] Speaker 04:
And again, that's not a failure of Mr. Stone's diligence.

[00:04:23] Speaker 04:
And so we look at what Mr. Stone could have done.

[00:04:26] Speaker 01:
Well, Ms.

[00:04:26] Speaker 01:
Richter, you're not arguing that every time someone gets an expert opinion later on, that that would always establish a factual predicate or is that your argument?

[00:04:37] Speaker 04:
it would not always.

[00:04:39] Speaker 04:
It would depend on the petitioner's particular circumstances and what that new expert opined.

[00:04:46] Speaker 01:
So what is it about these expert opinions that establish a factual predicate?

[00:04:50] Speaker 01:
Because I tend to agree with my colleague Judge Bennett that it doesn't seem that there are any new vital facts that arose out of these expert opinions that weren't already known at trial.

[00:05:02] Speaker 04:
The reason that these were previously not discoverable by Mister stone relates to his particular circumstances and this court has time and time again that the court should look at the particular circumstances of the petition or when seeing what in due diligence they could have discovered.

[00:05:18] Speaker 01:
But that's about his indigency and I guess his circumstances.

[00:05:21] Speaker 01:
I'm talking about the expert opinions themselves.

[00:05:25] Speaker 01:
If they are relying on facts already known at trial and then they opine about them, how is that a factual predicate as opposed to just an expert opinion?

[00:05:36] Speaker 01:
Setting aside that maybe he couldn't have discovered these things beforehand, your argument seems to be that if someone's indigent and they come up with an expert opinion later on, that will always establish factual predicate.

[00:05:49] Speaker 04:
the expert opinion.

[00:05:49] Speaker 04:
The expert opinion.

[00:05:50] Speaker 04:
One instance where it wouldn't is where the basis of the expert opinion was well known and publicly available to a prisoner.

[00:05:56] Speaker 04:
So in a different case, that's not this where the expert is essentially summarizing.

[00:06:02] Speaker 04:
Well known information that was already

[00:06:09] Speaker 04:
with forensic bullet matching testimony that's appeared in the 2016 report that's very available.

[00:06:15] Speaker 04:
This is quite different.

[00:06:16] Speaker 04:
This is analyzing the facts of the trial and applying a very particularized body of knowledge to that that Mr. Stone could not have done just as a prisoner trying to figure this out on his own.

[00:06:30] Speaker 02:
So even if we move past that, there's still the issue here or the hurdle here

[00:06:37] Speaker 02:
proving actual innocence, and it seems to me that the expert reports contain fairly qualifying language.

[00:06:45] Speaker 02:
I mean, tell me, they seem fairly inconclusive, so tell me how they can support the notion that your client here is actually innocent.

[00:06:53] Speaker 04:
Yes.

[00:06:54] Speaker 04:
Ms.

[00:06:54] Speaker 04:
Riston provides a report that is actually definitive in my opinion.

[00:07:00] Speaker 04:
Of course, none of the experts can say conclusively whether this happened or it didn't happen.

[00:07:05] Speaker 04:
But her conclusion was that the lack of reported symptoms and the absence of abnormal physical findings on EC's medical examination are not consistent with the allegations related to digital penetration.

[00:07:17] Speaker 00:
What I'm looking at

[00:07:19] Speaker 00:
I'm not sure what the answer is.

[00:07:21] Speaker 00:
I'm not sure what the answer is.

[00:07:23] Speaker 00:
And I hope I have the right word here.

[00:07:27] Speaker 00:
Appendix 7 49, she says, for penetration to occur, the hymen and surrounding tissue

[00:07:34] Speaker 00:
She says the attempt of successful penetration of the vagina has a high likelihood of resulting in injury.

[00:07:42] Speaker 00:
And then at 751, females in the study had evidence after delayed disclosure, but not all the

[00:07:50] Speaker 00:
the variance are definitive since only full transactions are considered diagnostic.

[00:07:56] Speaker 00:
So, I mean, based on those parts of her opinion, it's hard for me to see how you come to be to that no trier of fact could conclude that your client was guilty, especially given the Nevada Appellate Court's evaluation of the evidence here.

[00:08:17] Speaker 00:
So why don't those sort of waffling type statements, I mean that's what experts do often, why doesn't that basically mean you can't satisfy two little eyes of the statute?

[00:08:33] Speaker 04:
that's where she can testify and provide further information that would elucidate that.

[00:08:49] Speaker 04:
But if she's saying there's a high likelihood that if what he said happened.

[00:08:54] Speaker 04:
Had happened, it would look this entirely differently.

[00:08:57] Speaker 04:
That is extremely strong evidence of innocence that does meet that standard of a.

[00:09:03] Speaker 04:
sufficient showing of possible merit to warrant further exploration.

[00:09:06] Speaker 00:
Well, but possible merit doesn't get you there.

[00:09:08] Speaker 00:
It is the evidence as a whole would be sufficient to establish by clear convincing evidence that but for the constitutional error, no reasonable fact finder would have found the applicant guilty.

[00:09:25] Speaker 00:
I just don't see what those caveats and even more caveats that I see in Dr. Donahue's expert report that you can that you're meeting this.

[00:09:34] Speaker 04:
The possible merit language comes from this court's opinion in 2018, Henry versus Spearman.

[00:09:39] Speaker 04:
It's a very limited analysis that should take place at the authorization stage.

[00:09:45] Speaker 04:
That case explains that the court should exercise greater caution in denying authorization than in granting because that cannot be addressed later, whereas an inappropriate grant can be addressed later by the district court or on appeal.

[00:10:00] Speaker 00:
So that's where that language.

[00:10:02] Speaker 00:
the opportunity to present us with your best case is yours.

[00:10:09] Speaker 00:
I mean, this is what we're looking at is your best case before any of your witnesses are cross-examined.

[00:10:15] Speaker 00:
And this is what the nurse is saying and Dr. Donahue is saying at Appendix 759, evaluations of child forensic interviews are not evaluations of the veracity

[00:10:29] Speaker 00:
of the information, this evaluation will make no statement about whether the alleged events did or did not occur.

[00:10:39] Speaker 00:
So you're giving us your best case and your best case doesn't seem to me to get there.

[00:10:45] Speaker 04:
These are issues of probabilities.

[00:10:47] Speaker 04:
No expert can come in and say definitively this didn't happen, but they can give us the probabilities that if this had happened, as EC alleged, it would look entirely differently.

[00:10:58] Speaker 04:
There would be reported symptoms of severe pain.

[00:11:02] Speaker 04:
There would be reports of bleeding.

[00:11:04] Speaker 04:
There would be reported medical findings.

[00:11:07] Speaker 04:
There would be significantly fewer inconsistencies.

[00:11:10] Speaker 04:
And these are all things that experts could tell us about that so far Mr. Stone has never had the opportunity to present to the federal court.

[00:11:19] Speaker 01:
But even if even if nurse Riston had said definitively that digital penetration did not occur, you still have the problem that that Mr. Stone was not convicted solely based on that.

[00:11:31] Speaker 01:
He was also convicted based on oral penetration.

[00:11:35] Speaker 01:
And so even if you take digital penetration off the table, there's still a basis to convict.

[00:11:42] Speaker 01:
So I don't think that there's, that Nurse Wriston's expert gets you to actual innocence.

[00:11:47] Speaker 04:
But the actual innocence, first it would go to the various counts that he was convicted on.

[00:11:54] Speaker 04:
So he was convicted on numerous digital penetration counts.

[00:11:57] Speaker 04:
So if he can show innocence of those, then the court should grant authorization and that would be sufficient.

[00:12:03] Speaker 04:
He doesn't need to show innocence of every single count he was convicted of.

[00:12:07] Speaker 04:
That said, if he shows innocence of digital penetration because what she said doesn't align with the medical evidence, that also casts significant doubt on the other counts that Your Honor referred to.

[00:12:20] Speaker 04:
So Mr. Stone doesn't need to prove innocence of everything if he can prove innocence or make a sufficient showing to warrant authorization on the digital penetration counts, then the case should proceed.

[00:12:35] Speaker 04:
There are no further questions at this time.

[00:12:37] Speaker 04:
I'll reserve.

[00:12:38] Speaker 04:
Thank you.

[00:12:58] Speaker 03:
Good morning, Your Honors.

[00:13:00] Speaker 03:
May it please the Court, Brooke Jorgensen, on behalf of the respondents.

[00:13:03] Speaker 03:
Your Honors, there are two issues that I would like to draw to the Court's attention.

[00:13:07] Speaker 03:
First, that Stone does not present a new factual predicate that could not have been discovered previously through the exercise of due diligence.

[00:13:14] Speaker 03:
And second, even if this Court finds this evidence to be new, Stone fails to demonstrate that no reasonable juror would convict him based on this new evidence.

[00:13:23] Speaker 03:
evidence.

[00:13:23] Speaker 03:
Stone concedes that claims 2 and 3 are not based on new evidence and claim one stone asserts his trial Council was ineffective for failing to call a psychologist and nurse with expertise in child sexual abuse at trial.

[00:13:36] Speaker 03:
He argues these reports constitute new evidence.

[00:13:40] Speaker 03:
So essentially concedes that the factual predicate was available through due diligence because he's claiming trial Council was ineffective for failing to find it.

[00:13:51] Speaker 03:
through due diligence if trial counsel wasn't effective for failing to present it.

[00:13:56] Speaker 03:
Further, these reports do not constitute new evidence because they're based on a factual predicate that was available during trial.

[00:14:05] Speaker 03:
The reports are simply different opinions from the opinions of experts who did testify at trial.

[00:14:10] Speaker 03:
Stone uses these reports to discredit EC's testimony over 20 years after she testified.

[00:14:17] Speaker 03:
I want to address the air's case that opposing council was discussing that's the 6th circuit that's a 6th circuit.

[00:14:25] Speaker 03:
Respondents believe we should not adopt that in this circuit because that case was much different than this case in that case, the expert opinion testimony that they found after the conclusion of trial completely exonerated the defendant in that case that's not what's happening here.

[00:14:40] Speaker 03:
It's just different test different expert testimony that differs from the opinions of the

[00:14:45] Speaker 03:
experts at trial.

[00:14:47] Speaker 02:
So just to be clear we don't have to reject the Ayers case we just have to say it's not applicable to to this it's not it's not the same factual.

[00:14:56] Speaker 03:
Yes your honor we don't think it applies here.

[00:14:58] Speaker 00:
You would agree that there are hypothetical situations where the discovery of new facts could lead to the necessity of the retention of new experts that could not possibly have been known at the time of a trial or even the first petition, for example, because the predicate for retaining the experts would have been the new unknown and unknowable facts.

[00:15:23] Speaker 00:
You're not arguing that in that kind of a case, it's the same rule, right?

[00:15:27] Speaker 03:
Yes, Your Honor.

[00:15:30] Speaker 03:
If there are no further questions on the first factor, I'll turn to the second factor.

[00:15:37] Speaker 03:
Turning to my second issue, even if this court does find that the factual predicate was not available, Stone fails to demonstrate that no reasonable juror would convict him even if this alleged new evidence was presented.

[00:15:48] Speaker 03:
The reports would not have changed the outcome of the trial because the information was either known at trial or simply just contradicts the expert opinions.

[00:15:56] Speaker 03:
the case.

[00:15:57] Speaker 03:
I'm not going to go into the details of the case.

[00:16:00] Speaker 03:
I'm going to go into the details of the case.

[00:16:02] Speaker 03:
I'm not going to go

[00:16:04] Speaker 03:
Her report found that EC was in Tanner stage one and not estrogenized.

[00:16:08] Speaker 03:
However, nurse Souter, who actually examined EC, found she was more mature in Tanner stage two and was estrogenized.

[00:16:16] Speaker 03:
Thus her finding that EC's hymen would likely be damaged because she was not estrogenized is not reliable compared to nurse Souter's testimony that she was estrogenized and any lacerations would have healed within the two weeks from the last abuse to the examination.

[00:16:32] Speaker 03:
And that's why we're going to continue to do that.

[00:16:34] Speaker 03:
Further, there is no need for nurse or suitor to thoroughly examine he sees Hyman as nurse wrist and suggest because as nurse suitor testified at trial.

[00:16:41] Speaker 03:
Stone may not have fully penetrated he sees vagina.

[00:16:49] Speaker 03:
nurse suitor testified that many times digital penetration with children comes in over that on top of the genital area rather than inside the vaginal canal.

[00:16:57] Speaker 00:
And is Nevada law similar to other places where any amount of penetration is sufficient to establish the offense?

[00:17:04] Speaker 03:
Any intrusion however slight, yes your honor.

[00:17:07] Speaker 03:
She was 9 when the abuse began and 12 when it ended.

[00:17:10] Speaker 03:
So it's possible there was no digital penetration inside the vaginal canal that would have damaged the hymen even though EC's testified that there was.

[00:17:21] Speaker 03:
testimony.

[00:17:27] Speaker 03:
The jury heard the many inconsistencies defense counsel thoroughly impeach sure.

[00:17:32] Speaker 03:
And they also had all the transcripts of our previous testimonies to compare to her testimony at trial.

[00:17:37] Speaker 03:
Nevertheless, the jury still found him guilty.

[00:17:40] Speaker 03:
Further donahue focused on the interviewers techniques.

[00:17:43] Speaker 03:
that he's not guilty.

[00:17:44] Speaker 03:
He's not guilty of being an issue.

[00:17:45] Speaker 03:
Donahue admits in his report that he holds different views about forensic interviews than those currently in the held in the field.

[00:17:51] Speaker 03:
So this does not prove that the techniques were so insufficient to prove him innocent.

[00:17:56] Speaker 03:
This evidence would not have led the jury to find stone not guilty because the jury had access to those transcripts and still found him

[00:18:04] Speaker 01:
As I understand it, Mr. O'Donoghue's report essentially concluded that these factors could have led to bias in the child, but he was not opining on any of the truth or non-truth of what she said.

[00:18:19] Speaker 03:
Yes, your honor.

[00:18:19] Speaker 03:
That is true that it's just different expert opinions.

[00:18:22] Speaker 03:
And if we were to allow this and allow petitioners to go back 20 years later, find a different expert opinion presented to this court and say, hey, I need another go at this because this different opinion proves me innocent.

[00:18:35] Speaker 03:
We would be inundated with cases applying for a second or successive petition.

[00:18:39] Speaker 03:
If there are no further questions, we ask that this court deny the application.

[00:18:44] Speaker 03:
Thank you.

[00:18:45] Speaker 03:
Thank you.

[00:18:58] Speaker 04:
Thank you.

[00:18:59] Speaker 04:
Just a few brief points on rebuttal.

[00:19:02] Speaker 04:
The first is that Ms.

[00:19:04] Speaker 04:
Jorgensen talks about different issues that she believes there might be with the expert reports.

[00:19:10] Speaker 04:
But at this stage, the court is to assume that Mr. Stone can prove what is in those reports.

[00:19:15] Speaker 04:
So the standard looks at whether these facts, if proven, show clear and convincing evidence of innocence.

[00:19:22] Speaker 04:
So those issues of potential vulnerabilities for later are not an issue at this stage.

[00:19:29] Speaker 04:
She also expressed that there was.

[00:19:35] Speaker 04:
of due diligence because this was available to trial counsel.

[00:19:38] Speaker 04:
These facts were available to trial counsel.

[00:19:41] Speaker 04:
And we agree they were available to trial counsel.

[00:19:43] Speaker 04:
That's why trial counsel was ineffective.

[00:19:46] Speaker 04:
The problem was that these vital facts showing prejudice and showing trial counsel's deficient performance were not available to Mr. Stone.

[00:19:55] Speaker 04:
These were well beyond what he could do and what he could provide to the district court in habeas.

[00:20:03] Speaker 02:
Let me see what else.

[00:20:05] Speaker 04:
And I would like to point out this court's observation in Alcox that a petitioner's specific circumstances, including his incarcerated status and his lack of resources, are all factors relevant to the due diligence inquiry, and they are relevant here.

[00:20:22] Speaker 04:
Mr. Stone could not have presented the vital facts of his current IAC claim, including both subclaims in his prior proceeding.

[00:20:30] Speaker 04:
If there are no further questions, I'll submit.

[00:20:32] Speaker 00:
I'm sorry.

[00:20:37] Speaker 00:
I'm sorry.